Damien Maier v Guild House Restaurant

[2016] FWC 4000

[2016] FWC 4000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Damien Maier
v
Guild House Restaurant
(C2016/782)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 21 JUNE 2016

Application to deal with contraventions involving dismissal.

[1] On 7 April 2016 Mr Damien Maier (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Guild House Restaurant (the Respondent).

[2] The Applicant commenced employment with the Respondent on 2 January 2016. He was Head Chef in the Respondent’s restaurant in Canberra. He says that he was dismissed on 15 March 2016 but that the date the dismissal took effect was 22 March 2016, because of the notice period.

[3] If the date the dismissal took effect was 15 March 2016, the application was lodged two days out of time.

Alleged Contravention

[4] The Applicant says that after he was ill, because of stress, his rate of pay was reduced. He was then dismissed on 15 March because the Respondent was not happy about the way the kitchen was being run. He says he complained about under-payments but did not appreciate the extent of it until he received pay slips after his date of termination. He also says he was discriminated against because his medical condition led to alleged problems with his performance.

[5] Breaches of ss.340, 351 and 352 are alleged.

Respondent’s Submissions

[6] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[7] The Respondent states that the Applicant was verbally dismissed on 15 March. He would have been given a formal letter on 18 March when he was rostered but he did not attend work.

[8] The Applicant was dismissed, during his probation period, because of lack of performance. The Respondent details the process of performance review that was undertaken and the various issues with the management of the kitchen.

[9] The Respondent submits that, as Manager, the Applicant always had access to his pay slips. Further, he was not underpaid because he was employed on over-award salary arrangements allowed under the Restaurant Industry Award 2010 [MA000119].

Relevant Legislation

[10] Section 366 of the Act provides:

366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Approach of the Commission

[11] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[12] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[13] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Commission Proceedings

[14] On 27 April 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 3 June 2016.

[15] The Applicant was not represented. The Respondent was represented by Ms Elena Williams, the proprietor.

Matters to be taken into account pursuant to s.366(2)

[16] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[17] I am satisfied that the date the dismissal took effect was 15 March 2016. The Applicant provided no credible explanation of his failure to attend work after that day.

[18] The Applicant’s reason for not lodging in time was the alleged delay in obtaining pay slips and putting together his claim. I do not accept that this prevented him from lodging the application in time.

[19] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[20] After the dismissal the Applicant took a range of actions to contact the Respondent. This mainly related to the alleged underpayment rather than the dismissal.

[21] I am therefore not satisfied that this is a matter of significance in this case.

(c) Prejudice to the employer (including prejudice caused by the delay)

[22] I would treat this as neutral in this case.

(d) Merits of the application

[23] The Applicant alleges that he was dismissed because of issues around his alleged underpayment claims which, it appears, were mainly raised after the dismissal. He also says that his medical condition was a reason for the dismissal.

[24] The Respondent says that the Applicant was within his probation and had demonstrated his unsuitability for the Head Chef role. The Respondent sets out, in detail, the steps it took to review and deal with the performance issues with respect to the Applicant. It appears to me likely that the Respondent would be able to show that these were the operative reasons for the dismissal.

(e) Fairness as between the person and other persons in a like position

[25] This factor was not addressed and has not been taken into account.

Conclusion and Order

[26] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Damien Maier under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

D. Maier, Applicant;

H. Williams, for the Respondent.

Hearing details:

2016

(Telephone hearing):

June 3.

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